I was just reading the Wikipedia page on Adobe Systems, and it got me thinking again about Doug Rushkoff’s comments about start-ups and their venture capital driven rush to “acquisition or IPO” (IPO or “going public” = selling transferable shares to capitalists). Adobe’s initial products, like PostScript and Photoshop gave it first-mover advantage, allowing it to scale up by going public. From there, the rest of the history is pretty much a series of acquisitions of smaller companies, and then start-ups, and most of the other Big Data giants (Microsoft, Apple, AOL, Yahoo, Google, FaceBook etc) have a similar history. It’s eerie how analogous the process is to the way the fishing industry works, using drift nets and bottom trawlers to hoover up many small fish, and convert them into share value for a few giant companies.

At the same time, you can see why they do it. Buying smaller competitors make the company seem dynamic, successful, and powerful. They gain it media coverage in the tech and business press, usually boosting share price. Acquiring successful products and their user-bases, instead of developing new products in-house and paying beta testers, allows the acquiring company to pick the winners after the fact. It outsources all the work, the expenses, and the risk, to developers who are willing to play the start-up game.

One of the good things acquisitions do though, is put ever-larger pools of developers under one roof, sharing common infrastructure and its costs (in money and labour). It allows disparate products to be brought together in smoothly integrated whole systems to serve the needs of less technical users. Which begs the question, what would a peer-to-peer alternative to acquisition look like? One that allows this same integration and improvement of service to users, without the centralization of decision-making power, and the drive for cancerous growth, which seem inherent in the corporate form.

One possible model is offered by Enspiral, a federation of autonomous companies who share a central Wellington workspace, including hotdesks, a board room and kitchen, and the costs of legal and accounting services. A business *co-operation* instead of a business corporation. As the number of businesses in the federation grows, along with the number of people working in them, they can look into setting up self-hosted development tools, such as using a shared instance of Piwik, instead of giving all their users’ data to Google Analytics. Another model is the Collaborative Technology Alliance, of which Enspiral and  some of its member companies were among the founders. To quote their launch announcement:

“In the gathering, we sensed a possible harmony and collaboration, where each of us working on something that is radically unique to us, for the benefit of the whole. As we began to consciously uncover this harmony amongst our intention-aligned and disparate initiatives, we recognized that we can do more together, together.”

I think this sums it up nicely.

Filed April 30th, 2016 under Uncategorized

NZ GOAL-SE

In 2010, the first version of NZ GOAL (the New Zealand Government Open Access and Licensing framework) was released, to give official advice to government departments and public agencies about the use of CreativeCommons licenses to improve public access and re-use of publicly-funded copyright works. Version 2.0 was released in 2014. Since I first learned about NZ GOAL, through my role in the founding of CreativeCommons Aotearoa/NZ, I’ve been advocating for a similar policy encouraging the release of publicly-funded software as free code. So, I was excited to learn a proposed Software Edition (NZ GOAL-SE) has been drafted, and is up open to public consultation. Anyone interested can make suggestions for improvements to the draft, using a dedicated Loomio group, until April 30, 2016.

I’ve written a number of longish comments on the Loomio group, which I’ll be reworking as a series of blog posts. Keep in mind that while I always make a determined effort to get my facts right, IANAL (I Am Not A Lawyer), and anything I claim about software licensing should be checked against more qualified sources such as the Free Software Foundation, the Open Source Initiative, or the Software Freedom Law Centre.

 #1: How Can a GPL-Licensed Software Project Incorporate Non-Copyleft Code?

In a discussion thread about the use of the “MIT license” (presumably the version approved by the OSI under that name), NZ Open Source Society President Dave Lane said:

“I’m not sure if GPL’d projects can adopt MIT licensed components…”

I’m pretty sure that they can. While there may be some variation in compatibility between GPLv2 and GPLv3, the GPLv3 wiki has a list of licenses that are compatible with GPLv2, and it includes both licenses commonly referred to as “MIT” (Expat and X11). Also, Karl Fogel writes in Chapter 9 of his book “Producing Open Source Software”:

“While the Apache License 2.0 has the advantage of containing some explicit defenses against misuse of software patents, which might be important to your organization depending on the kind of project you’re launching, the MIT license is fully compatible with all versions of the GNU General Public License, meaning that you can distributed, under any version of the GPL, mixed-provenance works that contain MIT-licensed code. The GPL-compatibility situation for the Apache License, on the other hand, is more complicated — by some interpretations, it is compatible with GPL version 3 only. Therefore, to avoid giving your downstream redistributors the headache of having to read sentences like the preceding ones, I just recommend the MIT license as the default non-copyleft license for anyone who doesn’t have a reason to choose otherwise.”

Remember that by definition, “permissive” non-copyleft licenses contain no rules about what license applies to redistributed or modified versions. This is one of the qualities their proponents refer to as  “permissive”. That being the case, my understanding is there are a number of ways this could work for Project “Foo” (GPL license), and Component “Bar” (”MIT” license).

Firstly, what could happen if Project “Foo” (a graphical desktop application) incorporates a verbatim copy of Component “Bar”?

  • Project “Foo” identifies Component “Bar” as an external “dependency” in its packaging instructions. This means that on GNU/Linux (and most Unix systems), when a user installs a package of Project “Foo”, the latest version of Component “Bar” in the same software repository will be downloaded and installed too (unless its already installed). If Project “Foo” package their own binaries of their application (eg to support use on Windows or MacOSX), they can include the most compatible version of all non-copyleft dependencies like Component “Bar”, as long as a copy of the license for each dependency package is also included. *Note:* they can bundle copyleft dependencies too, but on the top of the copy of the license (or a link to one), they must also include a copy of the source code (or a link to one). Non-copyleft licenses don’t require this.
  • Project “Foo” copies the source code of Component “Bar” into their own repository, in its own section, and distributes it under the terms of the “MIT” license supplied by the developers of Component “Bar”. A copy of that “MIT” license must be included with the code. *Note:* Project “Foo” will usually identify Component “Bar” on their website and in their help files, and give credit to Component “Bar”’s developers (”attribution” as required by CC-BY) , but they are not legally required to do so by any of the licenses commonly known as “MIT”. Thus, an “MIT license” is not fully equivalent to CC-BY.
  • Project “Foo”  copies the source code of Component “Bar” into their own repository, and distributes it under the terms of the GPL. *Note:* this doesn’t stop anyone using, modifying or redistributing it under the original “MIT” license, and as above they must bundle the original developer’s license with the code anyway, so while this is legal, in practice there’s little point to it.


Now, what could happen if Project “Foo” incorporates a modified copy of Component “Bar”? In each case, for as long as any “substantial portions” of Component “Bar” remain, a copy of the original “MIT” license must be distributed with it.

  • * Project “Foo”  copies the source code of Component “Bar” into their own repository and modifies it. They distributes their modified version under the terms of the same “MIT” license and submit their changes back as “patches” to the original developer, who may or may not incorporate them into the next release of Component “Bar”.
  • * Project “Foo” creates a “fork” of Component “Bar”. They copy the source code into a new repository, give it a new name, modify it, and maintain this new version as a side project. They might do this to make maintenance easier if Component “Bar” was “orphaned” (not being actively maintained), or the original developer of Component “Bar” was not interested in incorporating their changes. The forked version could be licensed under the original “MIT” license, or under GPL (or any GPL-compatible license for that matter).
  • * If Component “Bar” was part of a larger program, Project “Foo” could rewrite it as a library that could be linked by their program, and also by other programs. In this case, LGPL is a third license option that might be chosen (for reasons discussed in another thread) as well as either of the two above.
  • * Project “Foo”  copies the source code of Component “Bar” into their own repository and modifies it. They distributes their modified version under the terms of the GPL. This makes it harder for the original developer to incorporate the modifications into a future release of Component “Bar”. They would have to get permission from Project “Foo” to use their modified code under the “MIT” license, or they would have to relicense Component “Bar” to GPL. *Note:* under the terms of a “permissive” license, it’s perfectly legal for Project “Foo” to do this. But if they are going to maintain a modified version of Component “Bar” themselves they are better to fork the project, as described above, to avoid confusion.
Filed April 25th, 2016 under Uncategorized

For some time now, there has been a copyright statement at the top of the index page for the Disintermedia wiki. The last time I amended it, the license I chose was CC-BY-SA 3.0 (NZ). Since then, version 4.0 of the CreativeCommons license suite has been released, and I’ve upgraded the default license for Disintermedia content to CC-BY-SA 4.0.

Despite a number of radical proposals being made during the consultation process, Version 4 of CC keeps the same framework and terminology we’ve become familiar with (Attribution, Non-Commercial, No-Derivatives, Share-Alike etc), with a number of improvements. Most of those relate to the wording in the lawyer-friendly text that most of us don’t read, and only affect risk-averse institutions that employ lawyers. Bbut there is one major change that is of interest to all CC users; the abolition of localized “ports” of the licenses, like the Aotearoa/ NZ versions I’ve been using since they were released.

Country-specific versions of CC never really made much sense considering the cross-border nature of the internet. They were created to hack around the fact that the original CC license were written with USA copyright law in mind, which works differently to the copyright law in other countries. Since then, there has been a lot of work done to harmonize copyright law across jurisdictions (with both positive and negative implications). Also, the “porting” of the CC licenses to other jurisdictions has improved the understanding by CC lawyers of the differences between the various copyright regimes. The combination of these two things allowed the version 4.0 licenses to be drafted using language that is legally robust, regardless of what country they’re enforced in.

Filed April 25th, 2016 under free culture, News

In a 2005 ZDNet article, described three commons assumptions about the “benefits of patents“; bootstrapping small business, research and development, and knowledge dissemination. Carroll is more of a patent opponent than apologist, so it’s to his credit he attempts to give some counter-arguments to his own position, but like so much apologism for the patent system, Carroll’s claims collapse under even a quick fact check.

The first argument is that waving a patent around is essential shark bait for attracting capitalist “investors”, initially banks for business loans, then venture capitalists who in turn “pivot’ your company to attract corporate raiders or shareholders, so you can make either “acquisition or IPO” (as Doug Rushkoff puts it). As evidence, Carroll cherry picks a couple of companies who haven’t been small since Noah built an Ark. In the meantime, a whole generation of start-ups have been bootstrapping themselves with ethically-orientated angel investors, crowdfunding, and now equity crowdfunding, while freely sharing their artwork under CreativeCommons licenses, software components under free code licenses, and hardware designs under open hardware licenses. Open business models, no patents required. Also, it’s well known that it’s primarily small to medium enterprises, the ones who can’t afford lengthy, expensive patent litigation, who are most often targeted by patent trolls. The picture advocates paint is of the patent patiently weeding competition from around the trunk of a vulnerable sapling, so it might become a mighty forest tree. But because of the cost and hassle of filing, enforcing, and defending oneself from patents, a more appropriate image would be the suffocating, acidic pine needles that mature pine trees drop to poison the soil beneath them, to prevent competition from new plants that aren’t other pine trees.

Carroll’s second claim is that patent are what motivates companies to spend large amounts of money on new technology that could otherwise be easily copied by other companies. As demonstrated above, there are other ways, and one of the most obvious ones is the open source methodology. Pooling research and development resources to develop technologies that everyone can benefit from, through a neutral consortium that can involve businesses, governments, civil society bodies, and networks of citizens, working by “rough consensus and running code“. The problem with research driven by patents is that it will be research shaped by the desire to maintain the concentrations of wealth required to keep filing and enforcing patents, rather than research that genuinely serves the public interest. Drug patents -monopoly rights over bits of chemistry - create particularly perverse incentives. They reward the constant development of entirely new drugs, whose side-effects and interactions with other drugs are often under-tested, and whose long-term effects (beyond the 20 year patent period) are untestable and unknown, while providing no incentive whatsoever for ongoing research into the best choice of drug for a given condition, including out-of-patent generic drugs. Neither do they reliably reward research into older medicinal plants and practices that are most likely protected from being patented because of prior art. For example, various patents related to cannabis use have been granted but they’re probably not enforceable in practice.

In the third argument, Carroll claims patents help disseminate knowledge of new technologies. As an example:

“RSA Security had the incentive to popularize the use of public key encryption algorithms because they were the ones who generated all the revenue as a result of that use.”

However, Ann Harrison’s Computerworld article from 2000, reporting on RSA released the patent into the public domain (a week before it was to expire), suggests that RSA’s patent monopoly actually suppressed research and development into new ways to implement public key encryption for its 20 year duration:

“Over the past two decades, the RSA patent and other public-key patents did more to suppress the deployment of public-key cryptography than the [National Security Agency],” said Phil Zimmerman, inventor of personal cryptography product Pretty Good Privacy (PGP). “Now at last, we can breathe freely and implement our own code.” 

Even independently developed technology could be slapped with royalty fees or patent violation suits if it implemented anything resembling the algorithm described in the patent. As a result, sources speaking to Harrison about the expiry of the patent said “this will result in more secure applications, especially among smaller firms that couldn’t afford the fees.” It also seems to have suppressed the harmonization of cryptographic technology, slowing down efforts towards interoperability of different systems:

“David Thompson, an analyst at Meta Group Inc., said having the algorithm in the public domain will allow for uniform cryptographic standards. “Longer term, increased availability of cryptographic functionality will allow easier and less expensive integration of PKI [public-key infrastructure] security services into applications and thus help overcome a major stumbling block,” he said.”

Ironically, the example of the RSA patent also rebuts the research and development claim. The patented technology was not developed by RSA, using capital invested on the promise of patentable technology, but by MIT, a publicly-funded university:

“The patent for it was issued to MIT on Sept. 20, 1983, and licensed exclusively to RSA Security.”

MIT could have done the same thing with the patent that Tesla have with their electric car patents. Instead, they handed over a digital monopoly to a private company. So much for that part of Carroll’s knowledge dissemination claim, but there’s another part. Says Carroll:

“Patents also have high disclosure requirements, meaning that every aspect of the innovation must be detailed so that others can use it.”

Sure, in theory, but even Carroll says:

“I question how strong an advantage this is in practice…”

Patent applications are examined by over-worked public servants who have to examine claims of novelty across every imaginable field of technology, from drugs to genetically engineered organisms to nanotechnology to software. They suffer less hassles if they grant a trivial patent that is later struck down in court, than if they knock back an application. The invention descriptions in patent applications are not usually put together by engineers or inventors, but by patent lawyers, and are intentionally written to be either so vague, so obtuse, or so trivial, as to be useless to anyone trying to create new products or services.

Apple’s “rounded rectangle” patent on the design of the iPad is a classic counter-example to all three of the common patent assumptions summed up in Carroll’s article. The patent was granted to a corporate behemoth, not a struggling small enterprise, and used as a stick to threaten competitors in the mobile computing market, not to attract necessary investment. It does allow Apple to control the rights to a case shape that is easily copied, but there’s no evidence this made them spend more on the design, or that this resulted in any new, publicly useful technology or knowledge. As for “knowledge dissemination”, well, perhaps the public did need more knowledge about rounded rectangles, and maybe the description of them in the patent will help people make better rounded rectangles in the future, but somehow I doubt it.

Now that digital technology vastly reduces the costs of starting a business with global reach, the barriers to collaborative development, and the cost of copying and sharing information, there is a strong case that patents no longer serve a useful purpose. More importantly, has anybody presented a rigorous argument for the public benefits of keeping patent laws around? One that doesn’t rely mostly, if not entirely, on unquestioned assumptions that turn out to be unsupported by real world evidence? A number of countries have taken steps in recent years to tighten up their patent rules, including Australia and New Zealand and this is good. But it’s high time for a first principles review of patents, one that demands that they be either thoroughly justified or abolished.

——————————————-

This is part of an ongoing series on patents:

Patents #1: Unpatenting, Patent Pools, and Patent Prevention

Patents #3: Farmers Become Hackers to Defend the ‘Right to Repair’ Tractors 

Filed April 11th, 2016 under Uncategorized
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